Ultimately it does not matter.
When marriages begin to fall apart, most spouses know that something is wrong. However, many spouses are hesitant to be the first one to file for divorce. Some are unsure about whether divorce is really the solution, others may wonder if they are being hasty and still others may just not know how to proceed. While people’s hesitation to file divorce is understandable, people considering divorce should be aware of the potential benefits that accompany being the first spouse to file for divorce.
Financial Benefits of Filing For Divorce First
Being the first spouse to file divorce means that a person can begin the proceedings at a time when he or she is financially prepared to do so. A person would have had time to collect copies of all important legal documents, such as deeds, bank and investment account statements, wills, life insurance policies, social security cards, titles to property. They will need these papers as part of the property division process, and it may be more difficult to obtain copies after the divorce starts. Also, a person can assess the family finances and determine the extent of their assets and debts, so they will have an accurate idea of what will be divided in the property division. People filing for divorce first also have the advantage of doing so after they have ensured that they have access to money and credit to meet their needs during the divorce process.
Possible Legal Benefits Of Filing First
One of the main legal advantages that a person gains by filing the divorce petition before his or her spouse does is that the filer can request a Standing Order from the court when filing the petition. Such an order prevents either spouse from making changes to beneficiaries on policies such as life insurance or retirement accounts, selling, borrowing against or transferring property, changing bank accounts and other similar financial moves. This can be important if the spouse filing divorce suspects that the other spouse will attempt to hide assets. The person who files for divorce also chooses the jurisdiction in which they litigate the divorce. In situations where spouses have lived apart from each other for a substantial period of time, possibly great distances from each other, filing the divorce petition first can prevent having to conduct matters related to the divorce far away from where a person lives.
If the matter should go to a hearing, the person who files the petition usually presents his or her case first. This can be a drawback for a spouse if he or she does not wish to reveal his or her strategy to the other spouse. The other spouse then has the opportunity to adjust the presentation of his or her case after seeing the other side.
Advantages of Filing First
If you file the initial Utah divorce petition, the court considers you to be the petitioner. Being the petitioner can be beneficial for several reasons:
• You don’t have to scramble to select a divorce attorney in time to file a response.
• You get to choose a convenient start time and establish deadlines for the case.
• You have time to prepare for the financial costs of divorce.
• You may have more of an opportunity to protect community assets.
• You won’t have to worry about your spouse stalling the divorce.
Advantages of Being the Respondent
If your spouse serves you with divorce papers, you’re the respondent. While playing this role may not have as many obvious advantages, being the respondent can be beneficial because:
• You have a chance to review your spouse’s requests before making decisions.
• Your divorce attorney can build an effective strategy based on the petition.
• You save money on filing fees and, in some cases, on service fees.
If you’re the respondent, you need to seek out legal counsel as soon as you’re served. You only have 21 days to respond if you were served in Utah, or 30 days if you were served outside of the state. If you fail to file a response within that time, the court may grant a default judgment, giving your spouse exactly what they have requested. Many people want to file first, but there are no consequences to being the respondent. Both parties in a Utah divorce are equal in the eyes of the law, and both have the opportunity to present their case. In the end, it won’t matter whether you’re the petitioner or respondent. Your Utah divorce attorney will be on your side, fighting for your rights and working to achieve the best possible outcome. If your marriage is over and you’re ready to file for divorce, having a skilled advocate in your corner is far more important than being the first to the courthouse.
The Divorce Process
A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.
Serving the Divorce Petition
The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers. Completing service of process starts the clock running on your state’s waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.
Divorce Petition Response
The other spouse is known as the “respondent.” Although it’s not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.
Final Steps of a Divorce
Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state’s waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.
What is an Uncontested Divorce?
If you and your spouse are worried about expensive, protracted court hearings, you can probably relax. According to CBS News, only about 5% of cases ever make it to trial. Other sources cite the number as being less than 5%. While estimates vary depending on who you ask, it’s easy to see what they all share in common: they’re tiny. Even in the worst case scenario, the likelihood of going to trial is minimal. That being said, it’s certainly not unheard-of. The good news is that the course your divorce follows is largely up to you and your spouse. In order to understand why, you have to have a general understanding of the Utah divorce process.
First, the petitioner files a complaint (petition) for divorce, which initiates the legal process. The spouse on whom the petition is served is known as the respondent. Once the respondent has been served with divorce papers, he or she has just 21 days to file an answer. (Out-of-state respondents have 30 days.) The nature of the respondent’s answer can set the divorce down a few different paths:
• If the respondent fails to file an answer within the allotted time period, then the petitioner can ask the judge to grant a default judgment. Ignoring divorce papers will not stop the divorce from happening; it will simply strip the respondent of his or her legal ability to challenge the petitioner’s demands.
• If the respondent agrees to everything in the complaint, including requests for alimony and/or child support payments, then the divorce is uncontested. If a divorce is uncontested, you can move ahead with the divorce process by filing the appropriate forms. However, even if you and your spouse are able to agree on the petitioner’s proposals regarding division of property, child support, and so forth, it is prudent to retain a family law attorney to ensure the proper and timely filing of legal documents. Some of the documents you will need to file include:
• Acceptance of Service
• Certificate of Divorce, Dissolution of Marriage, or Annulment
• Financial Declaration
• If the respondent disagrees with something in the complaint – for example, he or she wants to fight for sole custody instead of agreeing to joint custody – then the divorce is contested.
Even if aspects of the divorce are being disputed, it still doesn’t mean that trial is inevitable or even necessary. If you and your spouse initially disagree on how matters like custody, alimony, and division of property should be handled, then you will be sent to mandatory mediation. Mediation is not like litigation (going to court). In litigation, the parties stand in opposition to one another, and each party seeks a different outcome. A judge presides over the trial, and renders a judgment based on the facts which are presented. If the court’s orders aren’t obeyed for instance, if a spouse stops paying child support, rather than trying to have the terms of the support order modified then the non-compliant person is in contempt of court and can be fined and jailed. In mediation, a qualified mediator works with both parties to help them come to a resolution that both people can agree on. While mediation isn’t always effective, it does have several distinct advantages over litigation: it tends to be quicker, less expensive, and less formal. Plus, because mediation is inherently less adversarial than litigation, it can be desirable for divorcing spouses who want to stay on good terms for the sake of their children. Trial is essentially a last resort, the final method of resolving the disagreements between you and your spouse. If mediation fails to solve your disputed matters, it will become necessary to go to trial before a judge. You and your spouse are not officially divorced until the judge grants the final divorce decree. However, even at this stage, either party may appeal if he or she disagrees with some aspect of the judge’s decision. The notice of appeal must be filed within 30 days of the decree’s entry.
Divorce in Utah
If you enter into marriage under the age of 20 and/or have an income of less than 25,000, your risk of divorce skyrockets. Throw in a spouse losing their job or a surprise pregnancy, and your marriage may be doomed before it begins. Here in Utah, we have a tendency to marry quite young. The median age of marriage in the United States is 27 for women and 29 for men. Now compare that to the average age of marriage in Utah, which is 24 for women and 26 for men.
Utah’s divorce rates run slightly higher than the national average. Statistics often attribute this to Utah having larger families than the national average, citing more than 5% of families have 7+ family members compared to the 3.25 national averages (2013).
Utah Requires Divorcing Couples to Attend a Divorce Education Class
Utah legislators have created a mandatory divorce orientation course that couples must complete. Your divorce cannot be finalized until both you and your significant other have completed the course. You are only required to take the divorce education class if there are minor children involved. The one-time class reviews resources for custody and child support issues, clarifies the divorce process, and consequences of divorce.
The news that you are getting divorced has spread through your church, neighborhood, and/or workplace, and we are a curious species. Don’t be surprised when people you barely know ask you why you the nitty-gritty on why you are getting divorced. There is much guilt and regret present in nearly every divorce. You may easily blame yourself because you run through all the things you could have done differently, because your children blame you, or you may feel guilty simply because you were the one who filed the divorce papers. This is normal!! Make a choice to move forward, and take care of yourself. Throughout the divorce process you will have good days and bad days. Feeling guilty or overwhelmed does not mean that you should give the other spouse everything. Doing so will probably not lessen the grief on either side, and you are still entitled to half of everything. Additionally, people may want to tell you their divorce horror stories. Please remember that every situation is different, and you shouldn’t let someone else’s negative experience stress you out. When you are feeling stressed, rely on professional advice from your family law attorney, mental health counselor, or financial advisor as they are qualified to give you answers pertaining to your specific situation.
Parenting after Divorce May Become More Difficult
There will be many disagreements maybe not fair or logical ones. There may be pain when you refer to your ex as “mommy” to your kids, however that is her name to them, and you need to be the adult about it. No matter what age your kids are, please practice high levels of self-control and not bad mouth the other parent in front of your children. You may think with the other spouse out of the picture, that you can make all parenting decisions by yourself. If you’re granted sole legal custody, then you can make major decision about the kid(s) by yourself. Having sole physical custody simply means that you are the parent the kid(s) live with. Make a choice to try to co-parent as best you can. If you can’t get along, you may need to have separate birthdays, and the more times in your kids’ lives you are going to miss out on. Just because you are divorced, doesn’t mean that you have to be enemies.
If the Utah Divorce Decree is Violated, There can be Serious Consequences.
Once the court has ruled and the papers have been signed, both parties are bound to the terms set forth in the divorce decree. Violating any part of the agreement may put the violator in contempt of court, and your family law attorney can help you file a contempt motion. The most common divorce violations are non-payment of child support, not complying with the visitation schedule, withholding visitation, and non-payment of alimony. If your ex does not bring the kids back at the time set forth in the divorce decree, the police will not help you bring them back unless there is an immediate threat to them. What the police will do is come to your house and makes a record of “visitation interference,” which your family law attorney can use as evidence in a contempt hearing. In your court hearing you must be able to state what areas of the decree have been violated, and the burden of proof always lies with the accuser. If you are found in contempt, the violator may be given a period of time to correct the issue or they may face jail time until the matter is resolved. If you ex is not paying alimony or child support due to unemployment, you can’t make your spouse pay if they do not bring in an income, however, past due child support will accrue.
Free Consultation with Divorce Lawyer in Utah
If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506